Maryland and Illinois Seek to Protect Employee Social Media Activity

Have you ever reviewed the Facebook or LinkedIn profile or other social media activity of an employee or applicant? How about requiring employees or applicants to provide access to social media activity as a condition of employment. The Maryland and Illinois legislatures would like to limit employers’ ability to engage in this kind of activity with new laws that would be the first of their kind in the nation.

Maryland. Under one version of the law in Maryland, H.B. 364, employers would not be permitted to

require an employee or applicant . . . to disclose any user name, password, or other means for accessing any internet site or electronic account through an electronic device, or

require an employee to install on the employee’s personal electronic device software that monitors or tracks the content of the electronic device.

Under this bill, the employer could not discipline the employee or refuse or fail to hire the applicant for not complying with such requests. However, an employer could require an employee to disclose username, password or other means of access to the employer’s internal computer or information systems.

The provision that would prohibit employers from monitoring or tracking content on electronic devices would present a dilemma for employers faced with various legal and ethical obligations to safeguard personal and other confidential data. Many employers are struggling to find ways to track, limit, and in some cases encrypt, personal and other confidential information maintained on portable electroinc devices, including the personal devices of employees. This bill would make that process more challenging, particulalry for businesses with nationwide operations in heavily regulated businesses such as healthcare, insurance, finance and so on.

Two other bills (H.B. 310, S.B. 434) also are being considered that would prohibit public and nonpublic colleges and universities from making similar demands on students and applicants.

Illinois. The Illinois law being considered (H.B. 3782) would make it unlawful for "any employer to ask any prospective employee to provide any username, password, or other related account information in order to gain access to a social networking website where that prospective employee maintains an account or profile."

Existing Risks with Searching/Monitoring the Social Media Activity of Employees or Applicants. The Maryland and Illinois laws, if passed, may be the first of their kind, but they certainly are not the first risks employers have faced when engaging in this kind of activity. In fact, there are a range of existing risks employers must consider, such as

Employers therefore need to proceed carefully when using social media as a tool for making decisions concerning hiring, promotion, discipline, and termination. Assessing whether to engage in such activity, how and when to do so, who should be authorized to search and monitor in this way, and what training should be provided can go a long way to minimizing these risks.

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Accessing and exchanging business information in cyberspace fosters both unlimited possibilities and new risks and vulnerabilities for companies across the globe. Jackson Lewis’ interdisciplinary Privacy, e-Communication and Data Security group stays on the edge of legal developments affecting our clients’ business and workplace risks